The recent case of Winchester & Eastleigh Healthcare NHS Trust v Walker was decided on appeal and sheds some interesting light on the complex matter of NHS continuity of service. It is a common misconception that NHS continuity of service is always carried from one NHS employer to another. This is not always the case.
Ms Walker had been a nurse since in the NHS since 1983. She succeeded with her claim of constructive unfair dismissal from Winchester & Eastleigh Healthcare NHS Trust and was awarded compensation based on her total service working as a nurse in the NHS, despite only working with the Trust since 2006. The Trust appealed against the size of the award, pointing out that the regulations are very specific about which ‘descriptions of employment’ permit NHS continuity of service to be transferred, and a nurse is not one of the specified roles.
The Court of Appeal agreed and pointed out that there are only three ways to ensure continuity of employment. These are through a TUPE transfer, through statute/regulation, or through the contract of employment. Unfortunately for Ms Walker none of these avenues permitted her to transfer her NHS continuity of employment, so her award was reduced to reflect employment from 2006 not 1983.
There are a number of lessons to be learned from this:
1. Contrary to popular belief, there is not necessarily an automatic right to ‘NHS continuity of service’. Indeed it is unlikely that anyone employed by a GP practice would automatically accrue this right
2. Perform due diligence when merging or acquiring NHS businesses as this creates an automatic TUPE transfer which can bring with it some very significant potential liabilities
3. Seek qualified advice when drafting employment contracts for your staff. Because there is a belief that NHS continuity of service is transferrable, this is often written into staff contracts which then creates the unnecessary liability.